The New Criminal Code and the Future of Indonesian Pluralism
Not many countries attempt to reconcile national law, religious law, and customary law all within a single criminal code. Indonesia is undertaking this major experiment through the new Criminal Code (KUHP), which officially came into effect on 2 January 2026.
The new KUHP was born with a far greater ambition: to build a criminal law that aligns better with Pancasila values, is more restorative, contextual, and closer to Indonesia’s diverse social reality. In legal-political terms, the new KUHP aims to symbolise the decolonisation of national law.
However, Indonesia’s diversity always presents complex dilemmas. The state needs legal instruments to maintain social order and public harmony, while also being required to protect civil liberties, religious freedom, and minority rights. In this context, the implementation of the new KUHP serves as a major test for Indonesia’s pluralistic future.
POLITICS OF RECOGNITION
In a diverse society, law is never truly neutral. It always carries interpretations of which values the state must protect and which groups deserve preservation. Charles Taylor, in Multiculturalism and the Politics of Recognition (1992), explains that recognition of group identities is crucial to modern democracy. Such recognition determines whether a group feels respected as a legitimate part of the political community.
The new KUHP appears to move in this spirit. The state seeks to acknowledge Indonesia’s diversity, including customary law and religious sensitivities that form the social foundation of communities.
This is evident in two key clusters of the new KUHP: Articles 300-305 on crimes against religion and religious life, and Article 2 concerning living law or law that exists within society.
On paper, both seem like gestures of respect for Indonesia’s social character. The state is no longer imposing a purely legalistic and positivist criminal law model. Law is now given space to interact with social and cultural values.
However, history shows that recognition politics can turn into dominance politics if the state fails to balance collective interests and individual rights.
Articles 300-305 of the new KUHP are positioned as an improvement over Article 156a of the old KUHP and the 1965 PNPS Law. These regulations prohibit hostile acts, hatred, discrimination, and incitement based on religion and belief. Article 301 increases penalties when committed via media, while Article 302 prohibits forced conversion or incitement to abandon religion.
From the state’s perspective, these provisions can be understood as efforts to maintain social harmony. Indonesia has a long history of identity and religion-based conflicts. The state certainly does not want digital and public spaces to become arenas of unbridled hostility.
In many cases, religiously motivated hate speech can indeed spark serious social violence. Therefore, the need for legal protection of religious life is not entirely misguided.
The new KUHP also explicitly states that scientific and objective criticism cannot be criminalised. Recognition of believers in indigenous faiths is part of a positive development showing efforts to expand inclusivity.
The issue arises when legal norms enter the realm of interpretation. Phrases like ‘hostility’, ‘hatred’, or ‘incitement’ have unclear boundaries. In modern criminal law practice, overly elastic interpretive spaces often lead to legal uncertainty.
HLA Hart, in The Concept of Law (1961), describes this as the ‘open texture of law’—a situation where legal language cannot fully capture the complexity of social reality. At some point, law enforcement officials will determine the interpretation boundaries themselves.
This is where public anxiety about the new KUHP lies. In a society highly sensitive to identity issues, legal interpretations can easily be influenced by social pressure, majority opinion, and political mobilisation.
Concerns were evident when nine students filed a material review of Article 302(1) with the Constitutional Court in January 2026 (case number 274/PUU-XXIII/2025). They argued the article could restrict freedom of belief and expression. Although the Constitutional Court rejected the petition in March 2026, debates over the principle of lex certa (legal certainty) remain unresolved.
The social media context further complicates matters. Video clips, satire, memes, or criticisms can spread without full context, triggering public emotional reactions. In such situations, law enforcement often operates under mass perception pressures.
Therefore, the biggest challenge for the new KUHP is not just the wording of the articles, but also the culture of law enforcement. The state must clearly distinguish between criticism, expression, academic discourse, and genuine hate speech that threatens public order.
MAINTAINING BALANCE
Five months into implementation, the new KUHP reveals Indonesia is in a critical legal transition phase. The Supreme Court has issued Supreme Court Regulation No. 1 of 2026 on Guidelines for Implementing the 2023 KUHP and 2025 KUHAP as a transition guide to ensure consistent application of law and reduce potential misinterpretations.
That step is important, but insufficient. Criminal law reform depends not only on changes to legal text but also on institutional quality, the maturity of law enforcement officials, and the state’s ability to distance itself from majoritarian populism pressures.